JUDGMENT
Ajay Rastogi, J.
1. This writ petition came up before this Court on an application filed by respondent Nos. 1 and 2 under Article 226 of the Constitution of India for vacation of stay order passed on 17th August, 2004. But, with the consent of parties, the matter has been finally heard.
2. The petitioner has challenged award dated 8th December, 2003 (Annexure-5) passed by the Commissioner under Workmen’s Compensation Act, 1923 (for short “Compensation Act”), whereby compensation for a sum of Rs. 2,98,526 has been awarded with interest @ 12% p.a. from 23rd January, 2003 the date of presentation of claim petition, and has also challenged order dated 10th June, 2004 (Annexure 8), whereby application filed by the petitioner under Order IX Rule 13, C.P.C., has been rejected by the prescribed authority.
2. Respondent Nos. 1 and 2 (wife and son of deceased workman Sallah Khan) filed claim petition before the Commissioner under the Compensation Act for compensation in respect of death of Sallah Khan, who was working on daily wages basis @ Rs. 150 and was engaged for white-wash of the factory premises by the petitioner along with Chunnilal and Shambhu Singh.
3. It was stated in the claim petition that deceased workman was 50 years of age and getting monthly salary of Rs. 3,900 and on 10th December, 2002 while he was engaged in the work of white-wash of factory premises of the petitioner and despite all precautions, one of wooden pillars was broken and the deceased workman thereby fell down while he was working, and sustained serious injuries, so he was immediately hospitalised in General Hospital at Alwar and wherefrom he was referred to S.M.S. Hospital, Jaipur but he died there.
4. It has further been submitted by the claimants in their petition that postmortem of Sallah Khan was also got conducted at S.M.S. Hospital, Jaipur and F.I.R. was also registered under Section 154, Cr.P.C. Despite registered notice dated 7th January, 2003 was served, no compensation was paid by the petitioner. They claimed Rs. 1.80 lacs as compensation with interest @ 18% p.a., in their petition.
5. Before the Commissioner, despite service, none appeared on behalf of the petitioner and ex parte proceedings were initiated. Chunnilal and Shambhu Singh, who were also engaged with deceased Sallah Khan as daily wages workman, were examined by the prescribed authority during ex parte proceedings and after taking into consideration age of the deceased, and material on record, compensation was awarded in terms of Schedule IV appended to the Compensation Act, and accordingly awarded compensation of Rs. 2,98,526 with interest @ 12% p.a. payable from the date of presentation of claim petition.
6. After the award was passed by the prescribed authority on 8th December, 2003, a notice dated 9th December, 2003 was sent from the Commissioner for making payment of compensation awarded to the claimants, and thereafter the petitioner moved an application under Order IX Rule 13, C.P.C. for setting aside ex parte award passed by the prescribed authority on 8th December, 2003. In the application under Order IX Rule 13, C.P.C., it was stated by the petitioner that no notice was served upon the petitioner, and for the first time, it came to their knowledge when the notice dated 9th December, 2003 was served upon the petitioner. This application was opposed by respondent Nos. 1 and 2 and they filed their reply to it. It has come on record that notice was sent by registered A.D. post to the petitioner on 27th January, 2003 and which was returned back on 30th January, 2003 with the note that the addressee has refused to accept it. After taking that notice which was recorded on Registered A.D. notice, the prescribed authority j proceeded with the matter to initiate ex parte against petitioner on 10th March, 2003. After taking into consideration material on record, application filed under Order IX Rule 13, C.P.C. was also dismissed by the prescribed authority by order dated 10th June, 2004 (Annexure 8) and the authority was satisfied that the notice was treated to be duly served and the service of notice was held to be sufficient one, and there was no reasonable cause available for setting aside ex parte award (Annexure-5) passed in favour of claimants.
7. Both ex parte award dated 8th December, 2003 (Annexure 5) and order dated 10th June, 2004 (Annexure 8) passed on application under Order IX Rule 13, C.P.C. are challenged by the petitioner through this writ petition.
8. Mr. D.K. Bhardwaj, learned Counsel for the petitioner submitted that service of notice was not affected on the petitioner and there was bona fide cause, for which it could not be represented before prescribed authority. It has further been submitted that the amount which has been awarded is more than what has been claimed in claim petition by the claimants. It has also been submitted that deceased workman was daily waged employee, as such he could not be considered under, employment of the petitioner as he was working under the guidance and control of the contractor, as such the petitioner is not liable for making any payment under Compensation Act.
9. Mr. Rakesh Sharma, learned Counsel for the respondents, on the other hand, submitted that the award which has been passed by the authority under Compensation Act is appealable under Section 30 and before filing appeal, there are pre-conditions which are also mandatory and are to be complied with before entertaining the appeal. The limitation provided to question the award by way of appeal is 60 days and while presentation of appeal certificate has to be annexed to the effect that compensation awarded has been deposited with the prescribed authority and apart from it, there should be substantial question of law involved in the matter.
10. Mr. Sharma further submitted that once the award has been passed by the Competent Authority, present writ petition against such award, filed under Articles 226 and 227 of the Constitution of India is not maintainable and deserves to be dismissed. That apart, it has further been submitted that when the petitioner refused to accept Registered A.D. notice sent by the prescribed authority and documentary proof in respect thereof was available on record of authority, no error was committed in proceeding ex parte by order dated 10th March, 2003 against the petitioner. Apart from it, it hat, further been submitted that under Schedule IV appended to the Compensation Act, one is entitled to compensation in case of death or permanent disability, and what has been actually claimed is immaterial, and since age of deceased Sallah Khan was 50 years, amount of compensation has been awarded strictly in compliance of the schedule.
11. It has further been submitted by Mr. Rakesh Sharma that no distinction has been made whether workman or employee is on daily wages basis or in permanent employment, he has to be considered as workman under Section 2(n) and the petitioner has to be considered as employer under Section 2(e) of the Compensation Act. That apart, no error has been committed by the prescribed authority in initiating ex parte proceeding while passing award dated 8th December, 2003.
12. I have heard learned Counsel for the parties and perused material on record. From material, it depicts that the working of deceased in the petitioner factory as daily wages, and that he died during the course of employment while engaged in white-washing, since has not been disputed, the claimants in such a fact situation were entitled to compensation under the Compensation Act of 1923. The Registered A.D. notice by the prescribed authority under Compensation Act was sent on 27th January, 2003 but the addressee refused to accept it and a note was endorsed by the postal authority by its report dated 30th January, 2003 while returning it to the sender. After recording finding on aforesaid material on record, the prescribed authority by order dated 10th March, 2003 initiated ex parte proceedings. Presumption has to be drawn in the present facts and circumstances particularly when notice dated 7th January, 2003 was sent at the same address of the petitioner which was sent by respondent Nos. 1 and 2 before filing the claim petition. Apart from it, the prescribed authority has examined application filed under Order IX Rule 13, C.P.C. and passed a detailed order rejecting application by order dated 10th June, 2004, which is a finding of fact and this Court under Article 226 of the Constitution of India cannot reappreciate the same.
13. As regards submission made by Mr. Bhardwaj that compensation more than claimed cannot be awarded, from a bare perusal of the scheme of the Compensation Act, it depicts that it is only an application has to be submitted by claimants before the prescribed authority appointed under Section 20 of the Compensation Act and the amount of compensation is awarded strictly as per Schedule IV appended to the Compensation Act. It is immaterial as to what has been claimed by claimants in their application.
14. There is also a substance in the submission made on behalf of respondents that once award has been passed, remedy before the aggrieved party is to approach this Court under Section 30 of Compensation Act by following preconditions and can be entertained only on legal questions for consideration, which is a statutory remedy available. In such circumstances, finding of fact recorded by the prescribed authority in no manner is required to be reappreciated and cannot be looked into by this Court under Article 226 of the Constitution of India. The incident is of 18th December, 2002, legal notice was served on 7th January, 2003, application was filed on 23rd January, 2003, even after more than two years, dependents-claimants are not able to get a single penny and there is otherwise no substantial question of law involved. The prescribed authority in the present circumstances has done substantial justice, thus under equitable jurisdiction I am not inclined to interfere on merits as well, apart from statutory remedy available to the petitioner. I do not find any valid or good ground to disturb the findings recorded in the impugned award and order on application under Order IX Rule 13, C.P.C.
For aforesaid reasons, writ petition fails and is hereby dismissed. The parties shall bear their own costs.